defendant, during the year ending June 1, 1898, at Norwood, N. Y., 30,000 tons of 'Powelton coal, of same quality and kind as furnished you during the past year,' at $3 per net ton." It was contended in that case by the plaintiff that there was no warranty of the quality of the coal, and that by its acceptance the defendant had precluded itself from claiming damages for a breach of contract. In answer to that claim the court said:

"A satisfactory answer to this claim appears in the fact that it is not found or shown that the defects in the coal were visible on inspection, but, on the contrary, it negatively appears from the conduct of both the vendors and vendee that they were not discernible on inspection. A further answer to this, point is found in the proposition that the evidence authorized the finding that there was a warranty as to the quality of the coal sold."

And, further, the court said:

"We are, however, of the opinion that, upon the evidence, the contract contained a warranty of quality which survived the acceptance of the goods. * A contract of sale which points out a known and ascertainable standard by which to judge the quality of goods sold is, for all practical purposes, a sale by sample, and renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after opportunity to inspect the goods."

-That in case of an executory contract for the manufacture and sale or delivery of goods of a particular description, however, where, after full opportunity for inspection, the goods are accepted and no warranty attends the sale, the vendee is precluded fromh recovering damages for any variation between the goods delivered and those described in the

contract.

In the Brigg Case the contract sued on was one by which the defendants bought goods of the plaintiffs by sample, which represented sound and merchantable goods, suitable for and known as cloakings, and which the plaintiffs agreed should in all respects be equal to the samples. It was held that there was an express warranty as to the quality of the goods agreed to be furnished-a situation that has no application to this case, which was simply an agreement to manufacture and deliver certain goods specified, of a certain prescribed quality.

We think, therefore, that the judgment must be reversed, and a new trial ordered, unless the plaintiff is willing to deduct from the verdict the sum of $646, the amount paid for the wrenches delivered; and that, upon the plaintiff stipulating to reduce the judgment as entered to the sum of $1,801.47, the judgment as so modified and the order appealed from will be affirmed, without costs; if the plaintiff fails to make such stipulation, the judgment and order must be reversed, with costs to the party finally prevailing in the action to abide the event.

VAN BRUNT, P. J., and MCLAUGHLIN, J., concur.

LAUGHLIN, J. (dissenting). The terms of the contract are not in dispute. As shown in the record now before us, the contract is the same as that appearing in the record on a former trial herein, and stated in the opinion. Ideal Wrench Co. v. Garvin Machine Co., 65 App. Div. 235, 72 N. Y. Supp. 662. Upon the former trial the plaintiff was nonsuited. We reversed the judgment upon the ground that the case

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should have been submitted to the jury, but for the guidance of the court upon the new trial we expressed our opinion upon other questions presented and discussed. It was stated in the opinion, in which the majority of the court concurred, that this was a contract for the sale of wrenches to be manufactured in accordance with a sample or mode prepared and agreed upon by parties, and the defendant having covenanted that the wrenches would be "made in a first-class manner, in every way equal to that of the model submitted"; that this was a warranty that the wrenches would conform to the sample; and that plaintiff's assignor, therefore, was not obliged to inspect and reject the wrenches when delivery was tendered, but was at liberty to accept and retain them, and offset his damages against any claim that the defendant might have for the contract price, or could recover his damages in an independent action. Upon the new trial which we awarded the court followed our opinion in the former appeal. The only reason now assigned for a reversal or modification of the judgment in the prevailing opinion is that the court erred in holding, in accordance with our former opinion, that this was a sale by sample, and that there was a warranty that the wrenches would conform to the model. The theory of the prevailing opinion seems to be that all sales of goods not in esse are executory contracts for the manufacture and delivery of goods, and that the purchaser must, at his peril, within a reasonable time after delivery, or tender of delivery, inspect and reject those that do not conform to the contract, and this even though the goods were to be manufactured to conform to a particular sample or model which was made the basis of the contract.

The doctrine of a sale by sample was originally only applied to a sale of goods in esse, where, for convenience, a sample was taken from the bulk of the goods, and exhibited to the purchaser, who in purchasing had a right to believe that the sample exhibited was a fair sample, and that the bulk of the goods conformed thereto. This doctrine, however, has been extended as the methods of doing business have changed. Manufacturers of goods now prepare a sample, and, before expending money in the extensive manufacture of goods in accordance with the sample, by exhibiting the sample solicit orders for goods to conform thereto. Such contracts are now regarded as sales by sample, and the doctrine of warranty which applied only to goods in existence has now been extended to them. Under the rule as it originally existed, if the defendant had a quantity of bicycle wrenches manufactured and in stock, and presented one to the plaintiff's assignor as a sample, in reliance upon which those in stock were purchased, there can be no doubt that the purchaser would not have been obliged to inspect the wrenches when delivery was tendered, and to reject them if they did not conform to the sample wrench exhibited, but that he might accept them and maintain an action for damages for breach of the warranty. I see no difference in principle, so far as this question of warranty is concerned, between such a sale and the sale in the case at bar, where the sample wrench was agreed upon, and the defendant, without other description than the sample, contracted to manufacture and deliver wrenches to conform thereto. The only possible difference there can be is that, if the wrenches were in existence at the time of making the contract, the

vendor would or could know whether or not they conformed to the sample. In the case at bar, while it was originally understood that the plaintiff's assignor was to furnish the sample, the defendant subsequently, by mutual consent, manufactured it. The defendant undoubtedly had the model from which it was made, or could readily make one, and thus insure that the wrenches to be manufactured would correspond in all dimensions with the sample. Presumably, also, the defendant knew the quality of the material from which the sample wrench was made, and could obtain the same quality of material for manufacturing wrenches to fill the order; but that is immaterial, for the defect here complained of relates not to material, but to dimensions, it having been shown on the part of the plaintiff that the dimensions did not conform to the sample in the particulars stated in our former opinion. The defendant contracted to manufacture the wrenches in accordance with a particular pattern, without other description. It failed to perform its contract in this regard, and contends that the plaintiff's assignor can have no relief on account of his failure to promptly inspect and return the wrenches. The cases cited on the former opinion were then regarded as sufficient to show the extension of this doctrine of sales by sample and warranty. The rule there cited is now attacked by the prevailing opinion, and it is claimed that the authorities cited do not sustain it. It therefore becomes necessary to make a more extended examination of the authorities. In Gurney v. Atlantic & G. W. Ry. Co., 58 N. Y. 358, the point decided was that where certain railroad frogs were manufactured under an executory contract, and they did not conform to the pattern or sample, in that there were latent defects discoverable only by use, the purchaser, upon discovering the defects, was not obliged to rescind the contract and return the frogs, but could retain them, and recoup his damages as for a breach of warranty; the court on this point following Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719. The observations made in the opinion, quoted by Mr. Justice Ingraham, as to whether a recovery could have been had if the defects had not been latent, were therefore obiter. The case of Zabriskie v. C. V. R. R. Co., 131 N. Y. 72, 29 N. E. 1006, cited in our opinion as an authority for the proposition that this was in effect a sale by sample, is cited by Mr. Justice Ingraham as holding a contrary doctrine. That was an action to recover the contract price of coal. The coal was delivered under a contract by which the vendor agreed to sell and deliver to the defendant during the year ending June 1, 1888, 30,000 tons of "Powelton coal, of same quality and kind as furnished you during past year." It does not appear from the statement of facts whether the coal had been mined or was even owned by the vendor at the time of making the contract. The same vendor had furnished the defendant a quantity of Powelton coal the previous year. The court decided that this was "practically a sale by sample," and stated in the opinion that "although the standard selected for comparison was not present, or in existence even, at the time of the sale, its qualities had been observed and demonstrated, and were capable of exact ascertainment by the evidence of those who had witnessed the results produced by the consumption of the coal. It was unnecessary for the purpose of effecting a comparison of the respective qualities of

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the two specimens of coal that they should be present and compared side by side or tested at the same time. * * The standard se

lected for testing the quality of the goods sold was considered sufficiently definite and precise by the parties to the contract, and it does not appear that there was any difficulty in practice in applying it to the subject. A contract of sale which points out a known and ascertainable standard by which to judge the quality of goods sold is, for all practical purposes, a sale by sample, and renders the vendor liable for damages upon a breach of the warranty, although there has been an acceptance after opportunity to inspect the goods." The court also distinguishes that case from the cases of Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. 335; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L. R. A. 702; and Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831-upon the ground that they were executory contracts for the manufacture and sale or delivery of goods "of a particular description"; and further said, in distinguishing the case then at bar from executory contracts of sale by a particular description:

"While the term 'Powelton coal' may be said to be a descriptive term merely, when it is said that the coal was to be Powelton coal of the same quality and kind as that delivered in the previous year it goes beyond mere words of description, and refers to the intrinsic value of the goods sold, in language which cannot be misunderstood, and can be satisfied only by a consideration of its fitness to perform the work required of it in the defendant's business."

It is also claimed in the prevailing opinion that the case of Brigg et al. v. Hilton, 99 N. Y. 519, 3 N. E. 54, 52 Am. Rep. 63, cited in our former opinion upon the same proposition, is not in point. There an order for cloth was given, the goods to be "similar fabric and similar quality" to sample exhibited. The "general characteristics of the goods all through were stated to be equal in every respect to the sample." The goods were subsequently manufactured, delivered, and accepted after ample opportunity to examine them. The vendee, on being sued for the purchase price, counterclaimed damages for breach of warranty. It appeared that the defects would have been discovered. upon examination. The court held that there was a warranty that the goods to be furnished would be of like quality as the sample, and that the circumstance that the goods had not been manufactured did not affect this question. The case of Pierson et al. v. Crooks et al., 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831, cited by Mr. Justice Ingraham, I think is not in point. That was an executory contract for the sale of goods by description, and there was no sample or model exhibited or involved in the contract. There being no express warranty, it was held that the purchaser could not be heard to complain that the goods were not of the quality described in the contract where, after reasonable opportunity for inspection, he accepted and retained them. If it may be said that this question was previously involved in doubt, I think it has been finally determined by the Court of Appeals in Henry & Co. v. Talcott, 175 N. Y. 385, 67 N. E. 617, decided since. our former opinion. That was an action for goods sold and delivered under an executory contract for the manufacture thereof. The defendant interposed a counterclaim for breach of warranty, claiming that the goods were to be manufactured according to certain samples.

It appeared that the defendant accepted, retained, and used the goods. The defendant gave evidence tending to show that the goods were to be "equal to the sample," and evidence was presented in behalf of the plaintiff tending to show that the sample was merely intended to show the design, character, color, and general appearance of the cloth. The defendant also attempted to show that the goods were defective in quality; but this evidence was also excluded upon the theory that it was not a sale by sample, and that no warranty survived acceptance. The court in reversing the judgment for error in excluding this evidence held that the evidence presented a question for the jury as to whether it was a sale by sample, and stated the rule of law to be that: "Upon a sale by sample there is an express warranty that the goods are equal in quality to the sample furnished. The seller need not state that the bulk of the goods correspond with the sample, as the warranty is 'implied in fact,' and is express, for it must be found as a fact that the parties intended the sale to be made by a sample, and that the exhibition of the sample was regarded by them as an affirmation as to the quality of the article sold. Gurney v. Atlantic & G. W. R. R. Co., 58 N. Y. 364; Keener on Quasi Contracts, 5. In the absence of fraud, the warranty does not cover latent defects, unless the seller is the manufacturer, when it may extend to latent defects growing out of the process of manufacture. If upon delivery the goods fall below the quality of the sample, the buyer may either reject them, or may accept and sue for damages upon the warranty. Zabriskie v. Central V. R. R. Co., 131 N. Y. 72, 29 N. E. 1006; Kent v. Friedman, 101 N. Y. 616, 3 N. E. 905; Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719. The rule is the same whether the goods are in existence at the time of the contract of sale or are to be manufactured, although it is sometimes said that such a sale is not technically one by sample. Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Gurney v. Atlantic & G. W. R. R. Co., supra. The mere exhibition of a sample is not of itself an agreement to sell by sample, and it is usually a question of fact for the jury to decide whether, under all the circumstances, the parties intended that the sale should be made in that way. Even if the word 'sample' is used in a written order for goods to be manufactured, the sale is not by sample if the order contains minute specifications and descriptions, involving a great number of changes, variations, and differences between the article to be made and the sample shown. Smith v. Coe, 55 App. Div. 585, 67 N. Y. Supp. 350, affirmed 170 N. Y. 162, 63 N. E. 57. A sale, however, may be made partly by description and partly by sample, and in that event the goods must correspond to the description in the respect covered thereby and to the sample in other respects. Bach v. Levy, 101 N. Y. 511, 514, 5 N. E. 345; Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Burdick on Sales, 95; Benjamin on Sales (7th Ed.) 684. If the goods, when delivered, do not equal the sample, the buyer need not return them in order to recover for the breach of warranty, although an offer to return is necessary if he wishes to rescind the sale and sue for the amount paid in advance of delivery."

I am therefore of opinion that the judgment should be affirmed, with costs.

HATCH, J., concurs.